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2011 DIGILAW 441 (UTT)

ANJU TYAGI v. CIVIL JUDGE (S. D. ), ROORKEE

2011-07-15

V.K.BIST

body2011
JUDGMENT By means of this writ petition, the petitioners have challenged the order-dated 31.05.2011 passed by Civil Judge (S.D.), Roorkee, District Haridwar in Original Suit No. 93 of 1999 “Smt. Kailashwati Vs. Smt. Sunita and Others’, by which the application of the petitioners seeking permission to file report of finger print expert, in rebuttal/counter of the report filed at the behest of defendant nos. 1 and 2 has been rejected. 2. Facts, in brief, are that one Smt. Kailashwati had filed Original Suit No. 93 of 1999 ‘Smt. Kailashwati Vs. Smt. Sunita and others’ in the Court of Civil Judge (S.D.), Roorkee, District Haridwar for prohibitory injunction inter-alia on the ground that she got married to Shri Sewa Ram Tyagi in June, 1954, who had executed a registered Will dated 04.09.1988 in her favour. During the pendency of the case, Smt. Kailashwati expired on 14.08.2006. During her lifetime, she executed a Will dated 07.06.2006. The petitioners filed substitution application for getting substituted in place of deceased Smt. Kailashwati. The same was contested by the respondent nos. 2 & 3. On the objection of the respondent nos. 2 & 3, the Civil Judge (S.D.), Roorkee passed an order on 16.01.2009 to the effect that the appellants (petitioners) should prove the Will beyond suspicion and further ordered to produce the attesting witnesses of Will. 3. In compliance of the Court’s order dated 16.01.2009, the petitioner appeared as a witness, propounder of a Will, whose evidence was recorded on 06.03.2009, with whom a detailed cross-examination was conducted. One of the attesting witness of Will, Shri Umesh, was also produced as a witness on 22.07.2009, who proved the Will as required under Section 68 of The Evidence Act read with Section 63 of The Indian Succession Act. The Civil Judge (S.D.), Roorkee after hearing the parties, passed an order on 12.10.2009, wherein the Will was accepted and the substitution application was allowed on the basis of Will executed by Smt. Kailashwati. The said order was not challenged by respondent nos. 3 & 4. 4. In the meantime, the respondent no. 2 – Smt. Savita Devi filed an application under Section 156(3) of the Cr.P.C. as Misc. Case No. 102 of 2007, on the basis of which F.I.R. No. 210 of 2007 was registered on 13.10.2007. Thereafter, the charge sheet was filed. On 21.07.2010 summoning order was also passed. The petitioner no. 4. In the meantime, the respondent no. 2 – Smt. Savita Devi filed an application under Section 156(3) of the Cr.P.C. as Misc. Case No. 102 of 2007, on the basis of which F.I.R. No. 210 of 2007 was registered on 13.10.2007. Thereafter, the charge sheet was filed. On 21.07.2010 summoning order was also passed. The petitioner no. 1 alongwith the attesting witness, Shri Umesh Kumar, filed an application under Section 482 Cr.P.C., which was registered as Misc. application no. 740 of 2010. The said application was decided on 22.03.2011 with the direction to the Civil Judge (S.D.) to decide the genuineness of the Will within a period of three months from the date of service of a copy of the order. Operative portion of the order is reproduced below :- “The Civil Judge (Senior Division) is directed to forthwith, but not later than three months from the date of service of a copy of this order upon him, decide the issue whether the said Will is or is not a genuine Will of Smt. Kailashwati. Until he decides the same, he shall do nothing further in the suit in question.” The said order, according to the learned counsel for the petitioners, was modified subsequently and time was extended for further three months. 5. The facts, which are also relevant for the purpose of present petition, are that on 16.08.2010 issues were framed in Original Suit No. 93 of 1999, wherein issue no. 7 was framed to the effect whether Kailashwati had executed a valid Will dated 07.06.2006 in favour of Smt. Anju? If so, its effect? Thereafter, petitioners moved an application on 13.04.2011 under Order 14 Rule 5 and Section 151 C.P.C. with the prayer to delete issue no. 7 pertaining to Will dated 07.06.2006. The said application was rejected on 12.05.2011 on the ground that High Court has directed the Civil Judge (S.D.) to decide the genuineness of the Will. Being aggrieved by the order-dated 12.05.2011, petitioners filed Civil Revision before the District Judge, Haridwar, which is pending. Thereafter, petitioners also filed Writ Petition No. 987 of 2011, in which direction was issued to the District Judge, Haridwar to decide the revision on merits. On 23.05.2011 plaintiff’s evidence on issue of Will was closed. On 24.05.2011 respondent nos. Being aggrieved by the order-dated 12.05.2011, petitioners filed Civil Revision before the District Judge, Haridwar, which is pending. Thereafter, petitioners also filed Writ Petition No. 987 of 2011, in which direction was issued to the District Judge, Haridwar to decide the revision on merits. On 23.05.2011 plaintiff’s evidence on issue of Will was closed. On 24.05.2011 respondent nos. 2 & 3 sought permission of the Court to file the report of finger print expert regarding the thumb impression of Smt. Kailashwati on Will. Same was granted. Consequently, the report of expert at the behest of respondent nos. 2 & 3 was filed on 30.05.2011. One day after i.e. on 31.05.2011, petitioners moved an application and sought the permission of the Court to permit the petitioners to file the report of finger print expert, in rebuttal/counter of the report filed at the behest of the respondent nos. 2 & 3. The said application was rejected on the same day by the Civil Judge (S.D.), Roorkee, District Haridwar, on the ground that neither the petitioners have sought the permission at the time of filing of evidence of the scribe nor at the time of moving the application for expert at the behest of respondent nos. 2 & 3 under Order XVIII Rule 3 C.P.C. 6. Learned counsel for the petitioners Shri Siddhartha Singh submitted that learned Civil Judge (S.D.), Roorkee has not appreciated the fact that since the respondent nos. 2 & 3 did not file the list of witnesses containing the names of finger print experts, therefore, there was no need to reserve right. He further submitted that the learned Civil Judge has wrongly rejected the application of the petitioners on the ground that petitioners have not reserved their right to file report of finger print expert, in rebuttal/counter of the report filed by the respondent nos. 2 & 3. He submitted that Order XVIII Rule 3 provides such provision of reserving right only in the event when burden of proving some issue lies on the other party i.e. defendants. He also submitted that every party has a right to rebut the evidence filed by the other party, more particularly the evidence of the expert because report of an expert can be rebutted/countered with, only by another report. In the circumstances of the case, the Trial Court should have allowed the application. He also submitted that every party has a right to rebut the evidence filed by the other party, more particularly the evidence of the expert because report of an expert can be rebutted/countered with, only by another report. In the circumstances of the case, the Trial Court should have allowed the application. In support of his submission, learned counsel for the petitioners relied on the judgments rendered in AIR 2004 Delhi 136,. AIR 2001 Punjab and Haryana 331, and 2000 Punjab Law Journal 606. 7. On the other hand, Shri Arvind Vashisht, learned counsel for the respondent nos. 2 & 3 submitted that against the order of Civil Judge (S.D.), Roorkee, writ petition filed by the petitioners is not maintainable, as alternative remedy of revision is available for the same. In support of his arguments, learned counsel for the respondent nos. 2 & 3 relied upon the amendment in Section 115 of Act no. 5 of 1908 made by the Code of Civil Procedure (Uttaranchal Amendment) Act, 2005. He submitted that infact the application was moved by the petitioners only for delaying the hearing of the case, which is apparent from the fact that petitioners have also filed an application for deletion of issue no. 7, knowing fully that High Court had passed an order for deciding the same issue within a period of three months. He further submitted that issue no. 7 was framed on 16.08.2010 and in such circumstances list of witnesses showing the names of handwriting experts could not be supplied at the beginning. He also submitted that plaintiffs had sufficient opportunity to prove their case, but they failed to produce handwriting expert before closure of their evidence and now they have no right to rebuttal. In such circumstances, the petitioners should not be permitted to submit the report of handwriting expert. In support of his arguments, the learned counsel for the respondent nos. 2 & 3 relied upon the judgments referred in 2003 (1) CCC 67 (A.P.), 1992 CCC 194 (A.P.), 2004 (2) CCC 716 (P&H), 2000 (1) CCC 15 (P&H), 2001 P&H 331 and 2003 (1) CCC 445 (P&H). 8. In the rejoinder argument, learned counsel for the petitioners submitted that since the respondents have not raised the issue of alterative remedy in the counter affidavit, they should not be permitted to raise this issue at the time of hearing of the case. 8. In the rejoinder argument, learned counsel for the petitioners submitted that since the respondents have not raised the issue of alterative remedy in the counter affidavit, they should not be permitted to raise this issue at the time of hearing of the case. He also submitted that the High Court is a custodian of justice and for granting full justice, the High Court can entertain the petition under Article 227 of the Constitution of India. Learned counsel for the petitioners further submitted that revision is not maintainable against interlocutory order, as this remedy is available in decided cases only. 9. For deciding the issue of maintainability of Writ Petition, a look on Section 115 of Code of Civil Procedure as amended by the Code of Civil Procedure (Uttaranchal Amendment) Act, 2005 is necessary. Section 115 is being reproduced below :- “2. Substitution of Section 115 of Act no. 5 of 1908 Revision :- For Section 115 of the Code of Civil Procedure, 1908, hereinafter referred to as the principal Act, the following, section shall be substituted, namely – (a) exercised a jurisdiction not vested in it by law; or (b) failed to exercise a jurisdiction so vested; or (c) acted in exercise of its jurisdiction illegality or with material irregularity. (2) A revision application under sub-section (1), when filed in the High Court, shall contain a certificate on the first page of such application, below the title of the case, to the effect that no revision in the case lies to the district court but lies only to the High Court either because of valuation or because the order sought to be revised was passed by the district court. (3) The superior court shall not, under this section, vary or reverse any order made except where- (i) the order, if it had been made in favour of the party applying for revision, would have finally disposed of the suit or other proceeding; or (ii) the order, if allowed to stand, would occasion a failure of justice or cause irreparable injury to the party against whom it is made. (4) A revision shall not operate as a stay of suit or other proceeding before the court except where such suit or other proceeding is stayed by the superior court.” 10. The above mentioned section referred by the counsel for the respondents does not help the respondents. (4) A revision shall not operate as a stay of suit or other proceeding before the court except where such suit or other proceeding is stayed by the superior court.” 10. The above mentioned section referred by the counsel for the respondents does not help the respondents. Rather, it helps the case of the petitioners. It is settled position of law that revision is maintainable only against the finally decided suit or finally decided proceeding. Impugned order does not amount to a case, which has been decided. Unless, an order amounts to be a case decided, the provisions of Section 115 of the Code of Civil Procedure, 1908 cannot be invoked. Sub Section 3(1) of Section 115 clearly provides that the Superior Court shall not, under the Section, vary or reverse any order made, except where the order, if it had been made in favour of the party applying for revision, would have finally disposed of the suit or other proceeding. 11. Learned Trial Court has rejected the application on the ground that petitioners had not reserved their right under Order XVIII Rule 3 C.P.C. The Trial Court has not appreciated the provision in proper manner. Order XVIII Rule 3 C.P.C. clearly provides that the plaintiff may reserve his right by way of answer to the evidence produced by the other party in the matter where burden of proving some of the issues lies on the defendant. Order XVIII Rule 3 C.P.C. is also being quoted below :- “3. Evidence where several issues. – Where there are several issues, the burden of proving some of which lies on the other party, the party beginning may, at his option, either produce his evidence on those issues or reserve it by way of answer to the evidence produced by the other party; and, in the latter case, the party beginning may produce evidence on those issues after the other party has produced all his evidence, and the other party may then reply specially on the evidence so produced by the party beginning, but the party beginning will then be entitled to reply generally on the whole case.” 12. In the present case, burden of proving issue no. 7 lies on the plaintiffs/petitioners. Order XVIII Rule 3 talks about the issues, the burden of proving of which lies on defendants. In the present case, burden of proving issue no. 7 lies on the plaintiffs/petitioners. Order XVIII Rule 3 talks about the issues, the burden of proving of which lies on defendants. In the case in hand, the petitioners have not sought permission of the Court to file handwriting experts report in rebuttal of those issues, the burden of proving of which lies on defendants. Therefore, the learned Civil Judge (S.D.), Roorkee erred in rejecting the application on the ground that the petitioners had not reserved their right under Order XVIII Rule 3 C.P.C. 13. It is not disputed that the plaintiffs/petitioners closed their evidence on issue no. 7 on 23.05.2011. By that time, the defendants had not opened their mind that they are intending to file handwriting expert’s report. Till that date nothing was said about filing of handwriting experts report. Application for bringing on record the report of finger print expert was filed by the respondent nos. 2 & 3 on 24.05.2011. His name was also not included in the list of witnesses. Report of expert was filed on 30.05.2011. Immediately thereafter, on 31.05.2011 petitioners moved an application seeking permission of the Court for bringing on record the report of finger print expert in rebuttal/counter of the report filed at the behest of respondent nos. 2 & 3, which was rightly moved. I am not satisfied with the arguments of learned counsel for the respondent nos. 2 and 3 that such application was filed by the petitioners for delaying the proceedings. 14. Civil matters are decided on preponderance of evidence and the onus of an issue, be it initially placed on one party or the other, keeps on shifting during trial. In the present case, the onus of issue whether the Will of Smt. Kailashwati is a genuine Will was on the plaintiffs/petitioners. Same was discharged by them by examining Shri Umesh, one of the attesting witness of the Will. In rebuttal, the respondents chose to examine the handwriting expert with a view to show that the signature of Smt. Kailashwati appended on the Will were not genuine. In the case where Will is proved by direct evidence, i.e. by examining scribe and witnesses of the Will, it is not necessary for a party to examine handwriting expert in the first instance. But in the present case the respondents in rebuttal examined handwriting expert. In the case where Will is proved by direct evidence, i.e. by examining scribe and witnesses of the Will, it is not necessary for a party to examine handwriting expert in the first instance. But in the present case the respondents in rebuttal examined handwriting expert. In such situation the onus again shifted on plaintiffs/petitioners to rebut the said evidence. In my view the plaintiffs/petitioners rightly moved application to file report of finger print expert. For providing complete justice, parties must be given full opportunity to lead evidence. In the present case this opportunity was denied. Thus, the learned Civil Judge erred in rejecting the application of the petitioners. Case law cited by the learned counsel for the respondent nos. 2 and 3 will not help him in view of the fact that till the closure of evidence by the plaintiffs/petitioners, the respondents had not disclosed the name of handwriting expert in their list of witnesses. They moved application to file report of finger print expert only after closure of plaintiffs evidence. 15. For the reasons discussed above, the Writ Petition is allowed. Order dated 31.05.2011 passed by Civil Judge (S.D.), Roorkee, District Haridwar, by which the application no. (206-B) of the petitioners for bringing on record the report of handwriting expert was rejected, is set aside. Same is allowed. Petitioners are permitted to bring on record the report of handwriting expert within a period of one week from today. The Trial Court shall proceed further after the said report is filed. 16. No order as to costs.